Frey v. Etzel

WiNslow, C. J. The farm which was sold was well known to both parties. They both supposed it to contain something more .than seventy-five acres after the railroad parcel was taken out. They agreed that the plaintiff should purchase it and should pay therefor at the rate of $136 an acre, and their contract described it in effect as 104 acres “more or less,” excepting 28.50 acres “more or less” that day sold to the railroad company. In fact the original farm contained but 102.75 acres and the piece conveyed for railroad purposes contained 30.18 acres, leaving but 72.57 acres covered by the contract, being about three acres less than the amount named in the contract. The fundamental question in the case is whether this shortage is covered by the words “more or less.” These words must be given some meaning; they cannot be supposed to have been inserted merely for their literary effect. Unquestionably they constitute a qualification of the previous statement of acreage, and the well established principle is that they import that there may be a small deficiency or excess of acreage, the risk of which both parties assume, but that they do not cover a great difference or a considerable variation either way, i. e. a difference so great as to make it evident that either fraud or gross mistake entered into the contract. As has been said, “the words 'more or less’ are intended to cover a reasonable excess or deficit.” Belknap v. Sealey, 14 N. Y. 143, 156; Hosleton v. Dickinson, 51 Iowa, 244, 1 N. W. 550; Trinkle v. Jackson (86 Va. 238, 9 S. E. 986) 4 L. R. A. 525, see note p. 526; 2 Warvelle, Vendors, p. 838. [315] This is tbe basis of decision in the recent case of Richards v. Millard, 146 Wis. 552, 131 N. W. 365, where the contract described the land sold as about 160 acres' more or less and there was in fact but 152.81 acres. In that case also the purchase price was computed by the acreage. The difficulty doubtless is to determine when an excess or deficit ceases to be slight or reasonable and becomes great or considerable. In the New York case above cited the difference between eight acres and four was held not to be covered by the words, and in the Iowa case the difference between thirty acres and eighteen acres was held too great to be covered. In the Wisconsin case cited, however, the difference between 160 acres and 152.81 was deemed to be covered. Following that case, it would seem that the deficiency in the present case, being about three acres out of seventy-five, should be held to be covered. This seems the more reasonable in Anew of the fact that the plaintiff here had been well acquainted with the land and its boundaries for many years and was evidently buying by the tract, although the price was computed by the acreage named in the contract.' By the Gourt. — Judgment reversed, and action remanded with directions to dismiss the complaint.